Explain
Mental capacity and representatives
A young person is presumed to have the mental capacity to make their own decisions unless it is shown that they cannot. Capacity is about one decision at a time. A young person may lack capacity for a particular decision under the Act. Another person then acts with them or for them, depending on the decision. This is a deputy or attorney with the right powers or, if there is none, a parent (or the parent's representative if the parent also lacks capacity). A young person who has capacity can still ask a parent or anyone else to help them.
The SEND Regulations call the person who acts with or for the young person the alternative person. A deputy is appointed by the Court of Protection. Decisions made for a young person who lacks capacity must be made in their best interests. The SEND Code of Practice explains this in Annex 1: Mental Capacity. Direct payments follow different rules. When a child becomes a young person while direct payments are being made, the council must take reasonable steps to find out whether the young person agrees to them. If the young person lacks capacity to agree, the Personal Budgets Regulations give that agreement to their deputy or attorney, and do not say who gives it where there is none.
- Type of rule
- Law (Act or Regulations)
- Rule id
mental_capacity- Rules version
- england-2026.10
- Law as at
- 30 September 2026
Sources
- Mental Capacity Act 2005, s 1Law (Act or Regulations)
- Mental Capacity Act 2005, s 2Law (Act or Regulations)
- Children and Families Act 2014, s 80Law (Act or Regulations)
- Children and Families Act 2014, s 80(6)Law (Act or Regulations)
- SEND Regulations 2014, reg 64(1)Law (Act or Regulations)
- SEND Regulations 2014, reg 64(2)Law (Act or Regulations)
- SEND Regulations 2014, Sch 3Law (Act or Regulations)
- SEND Code of Practice 2015, Annex 1: Mental Capacity, the five key principles (best interests)Code of Practice: must (restates the law)
- Special Educational Needs (Personal Budgets) Regulations 2014, reg 15Law (Act or Regulations)
- Special Educational Needs (Personal Budgets) Regulations 2014, reg 16(2)Law (Act or Regulations)
Related
- Young person (and when the rights move to them)
- Who counts as a parent, and corporate parents
- Plans for young people aged 19 to 25
- Direct payment
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